This blog post examines the current state and problems of the sentence reduction system for mentally disabled offenders and explores improvement directions to safeguard public safety.
Around 1:20 a.m. on May 17, 2016, Ms. A (23, female), an office worker, was found dead in a public restroom of a commercial building near Gangnam Station on Seoul Subway Line 2, stabbed with a weapon. The perpetrator, a man in his 30s whom the victim did not know, had been waiting in the restroom for about an hour before the crime. He stabbed the victim multiple times with a weapon as she entered to use the facilities, killing her. The fact that an ordinary citizen became the target, coupled with the brutal method used by the perpetrator, caused public outrage at the time. Consequently, during the final hearing for the murder charges against suspect Kim, held on May 30th before Criminal Division 24 of the Seoul Central District Court, the prosecution sought a life sentence. Given that the death penalty is effectively abolished in South Korea, a life sentence is considered the most severe punishment and was deemed an appropriate sentence. However, the issue resurfaced on October 14. The court sentenced him to 30 years in prison at the first trial, citing his schizophrenia (psychosis) as grounds for diminished responsibility. This ruling reignited public outrage that had been dormant for some time.
The system of reduced sentences for the mentally disabled has existed for a long time. However, recently, the problems with this system have become apparent, reigniting controversy. In the recent Opae Mountain Tunnel shooting incident, it was also revealed that the perpetrator was mentally disabled. Crimes committed by the mentally disabled are increasing in Korea, and the problems with the reduced sentence system are becoming a subject of debate. By 2021, the number of mentally ill offenders had risen to 8,764, and the proportion of mentally ill offenders committing violent crimes also increased from 9.4% in 2017 to 13.2% in 2021. This, coupled with the lack of clear legal standards, suggests that crimes committed by the mentally ill are emerging as a social problem, and voices are growing louder that it is time to be vigilant.
The legal basis for sentence reduction is found in Article 10 of the Korean Criminal Act. It states: ① No punishment shall be imposed for acts committed by a person who, due to mental or physical disability, lacks the capacity to discern right from wrong or to form intent; ② For acts committed by a person whose capacity under the preceding paragraph is impaired due to mental or physical disability, the punishment shall be reduced. ③ The provisions of the preceding two paragraphs shall not apply to acts committed by a person who, foreseeing the danger, voluntarily caused a mental or physical disorder. In summary, the degree of sentence reduction differs based on whether the diminished judgment is due to a complete loss of judgment (insanity) or a diminished capacity for judgment (diminished mental capacity) compared to the average person. The basis for this reduction system lies in the principle of ‘responsibility’ in criminal law: since a mentally ill person’s judgmental capacity was not exercised when committing the crime, they cannot be held ‘responsible’ for it. Because responsibility cannot be attributed, corresponding punishment is impossible. This can be seen as ensuring fairness, given that mentally ill individuals are socially vulnerable.
However, this reduction system has revealed various problems during its implementation. First, the basis for determining mental disability is unclear, relying excessively on judicial discretion. While the law categorizes mentally ill individuals based on the degree of disability as either ‘those incapable of discerning right from wrong or making decisions’ or ‘those with a lesser degree of impairment,’ it lacks specific criteria for distinguishing these degrees. Consequently, judges struggle to apply consistent judgments across diverse cases. Under Korean law, persons with mental disorders include those with psychosis, personality disorders, alcohol and drug addiction, and other non-psychotic disorders. However, this definition is highly ambiguous and broad, making it difficult to distinguish persons with mental disorders based on such a simple classification. This has raised the need to subdivide persons with mental disorders and establish different punishment standards accordingly.
Furthermore, the absence of an exemption clause for sentence reduction for mentally ill persons is also pointed out as problematic. Unlike alcohol or drugs, mental illness is not a mental or physical impairment resulting from one’s own will, so clause ③ cannot be applied. Instead, according to Supreme Court precedents, “Mental disability as defined in Article 10 of the Criminal Act is a biological factor; […] even if an individual has a mental disorder, they cannot be considered mentally disabled if they possessed normal capacity to discern right from wrong or control their actions at the time of the crime.” In other words, even if someone has a mental illness, depending on the circumstances of the crime, they may not meet the legal definition of mental disability. However, even in such cases, there is a limitation: the decision on exemption is made based on the judge’s discretion without specific criteria. It is not easy for a judge to assess a suspect’s ability to discern right from wrong and control their actions in a typical criminal situation. Therefore, a reduction in sentence is almost certain once mental disability is established. Treating all crimes committed by suspects with mental illness as accidental and reducing their sentences risks creating reverse discrimination against those without mental illness.
The incompleteness of the law leads to the serious side effect of abuse. Without clear criteria, it is difficult to identify ordinary criminals pretending to have mental disorders. Consequently, there is a risk that this provision could become a de facto ‘get-out-of-jail-free card’ not only for those with mental illness but also for criminals without mental illness seeking sentence reduction. According to last year’s Ministry of Justice statistics, the number of requests for psychiatric evaluations at the National Forensic Service (Gongju Treatment and Custody Center) over the past 20 years increased approximately threefold, from 205 cases in 1995 to 604 cases in 2014. Between 2010 and 2014, 1,101 defendants who underwent psychiatric evaluations received custodial treatment instead of prison sentences, accounting for 34.2% of the total. This demonstrates that a system designed to ensure fairness for individuals with mental illness has devolved into a surefire strategy for reducing sentences. We must not allow ‘protection’ for the socially vulnerable to be misconstrued as ‘privilege’ enabling them to commit crimes.
Those advocating for maintaining the sentence reduction system for the mentally impaired argue that criminals suffering from mental illness should not be deprived of the opportunity for rehabilitation. They contend that failing to tolerate a momentary lapse caused by an accidental incident, demanding unconditional accountability, and simultaneously denying even the chance to make amends can be inhumane. For this argument to be persuasive, criminals who receive reduced sentences must demonstrate remorse for their crimes and show efforts to prevent recurrence. However, reality does not support this. Statistics show that as of 2014, the recidivism rate for criminals with mental disorders reached a staggering 64.7%. This is significantly higher than the overall recidivism rate of 45.3% for all criminals. Notably, 15.7% of offenders with mental disorders were repeat offenders with nine or more prior convictions. This suggests the reduced sentence system is failing to effectively serve its rehabilitative purpose of guiding offenders toward reform. Rather than offering a ‘chance for reflection,’ it appears to be granting them another ‘opportunity to commit crimes.’
How do other countries handle this? In the United States, for example, the Model Penal Code categorizes mental disorders into specific mental disabilities based on the disorder and applies varying degrees of sentence reduction. Crucially, individuals with specific mental disorders like psychopathy or sociopathy, deemed capable of decision-making, are excluded from sentence reduction eligibility. In contrast, South Korea includes both psychopaths and sociopaths within the category of mental disability, applying the same reduction system. Furthermore, even if a reduction is granted due to mental disability, the individual is confined to a secure mental health facility beyond the maximum period they would have served if convicted. This stands in stark contrast to South Korea, where the duration of confinement in a mental health facility is determined during the sentencing process. The U.S. reduction system also effectively prevents potential abuse stemming from long detention periods.
In Korea, the reduction system can lead to individuals being released into society without sufficient treatment, contributing to higher recidivism rates. Rather than implementing unconditional sentence reductions for the mentally impaired solely on grounds of diminished responsibility, a fundamental solution is needed. Here, a fundamental solution means liberation from mental illness itself. However, for mentally ill individuals currently facing sentencing in Korea, treatment periods are short, and budgets and personnel for treatment are severely lacking. The government must recognize the seriousness of crimes committed by the mentally ill and prioritize measures to improve the current poor treatment environment. The state has a duty not merely to consider fairness by shifting rehabilitation onto the patient through sentence reductions, but rather to actively intervene in treatment and guide the patient’s rehabilitation. While implementing the principle of responsibility in criminal law is important, the state’s primary role is to guide citizens toward rehabilitation and protect the law-abiding majority from crime.
At a time when parents say raising children is frightening, Korea has become a society where all citizens are exposed to various crimes. This may stem from chronic complacency about safety. However, as crimes committed by individuals with mental disorders, such as ‘random violence,’ increasingly become a social problem, it is time to seek solutions with heightened vigilance. Among these, the system of sentence reduction for individuals with mental disorders should be the first to be reconsidered. Like any law, this likely began with good intentions. However, as various problems have surfaced during its implementation and it runs counter to public sentiment, it is now necessary to apply the brakes to its enforcement. South Korea must shed its stigma as a ‘country where sentence reductions are easy’ and become a nation where citizens are safely protected and crime is not tolerated. To achieve this, the government, as the responsible entity, must step forward proactively to restore public trust.
